Madhya Pradesh High Court
Khemraj vs Sandeep on 17 June, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 17th OF JUNE, 2025
MISC. PETITION No. 1412 of 2025
KHEMRAJ
Versus
SANDEEP AND OTHERS
Appearance:
Shri Vinay Gandhi - Advocate for the petitioner.
Shri Shyamlal Patidar - Advocate for respondent nos. 1 and 2.
ORDER
1. This Misc. Petition under Article 227 of the Constitution of India
is filed assailing the order dated 19/02/2025 passed in Civil Suit no. RCS -
B/11/2022 by 1st Civil Judge, Junior Division, Maheshwar (Pashchim Nimad
) District - Khargone, whereby the application for amendment of plaint filed
under Order VI Rule 17 of the C.P.C was rejected.
2. Learned counsel for the petitioner, in addition to the facts stated in
the petition, contends that the petitioner has filed a civil suit for recovery of
Rs. 96,600/- with interest initially from respondent Sandeep towards the
supply of cement, iron, insecticides and other goods. Later, it was revealed
that Omprakash, father of Sandeep, had signed the bill acknowledging the
receipt of goods, therefore, the plaintiff had moved an application for
impleading Omprakash under Order 1 Rule 10 of the CPC. Learned trial
Court allowed the application vide order dated 04/09/2023 (Annexure-P/5).
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Accordingly, Omprakash was impleaded as defendant no. 2. Thereafter, the
plaintiff moved another application under Order VI Rule 17 of the C.P.C for
amendment of plaint and incorporate the factum of delivery of goods to
Omprakash on behalf of Sandeep and signing of acknowledgement receipt
by Omprakash. The proposed amendment is necessary to determine the real
controversy between the parties. Learned trial Court committed an error in
rejecting the application without considering necessity of the amendment.
Learned counsel, referring to judgment of Hon'ble Supreme Court in the case
o f Dinesh Goyal Vs. Suman Agrawal reported in 2024 INSC 726 and the
provision contained under Order 1 Rule 10 Sub-rule 4 of the C.P.C,
contends that after impleading Omprakash as defendant in the suit, the
plaintiff has right to amend the plaint to incorporate necessary averments
with regard to Omprakash, therefore, the application filed under Order VI
Rule 17 of the C.P.C deserves to be allowed.
3. Per-contra, learned counsel for the respondent contends that
Omprakash was impleaded as defendant on 04/09/2023, thereafter, the
plaintiff was examined on 11/02/2025. His cross-examination was
concluded. In order to fill the lacuna, appearing in the cross-examination, the
amendment of plaint was proposed vide application dated 18/02/2025. The
application is delayed. The plaintiff tried to introduce new facts, therefore,
learned trial Court committed no error in rejecting the application.
4. Heard both the parties and perused the record.
5. Plaintiff Khemraj has filed a suit for recovery of Rs. 96,600/-
towards supply of certain goods to Sandeep. In para - 3 of the plaint, the
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plaintiff has made specific averments that the goods were supplied to
defendant Sandeep and Sandeep had signed the acknowledgement. The
plaintiff has proposed a copy of signed bill alongwith the plaint. When the
plaintiff was examined before the trial Court on 11/02/2025, he was cross-
examined with reference to this acknowledgement. Thereafter, the plaintiff
moved the application for amendment of plaint substitute the averments of
delivery of goods and acknowledgement signature on the bill by Sandeep
with the new averments of acknowledgement by his father Omprakash. It
goes to show that the plaintiff desires to introduce a entirely new case of
signing of acknowledgement by Omprakash, father of original defendant
Sandeep.
6. The trial has commenced, therefore, in view of the proviso to
Order VI Rule 17 of the CPC, amendment can be allowed only if the plaintiff
can show that inspite of due diligence, he could not have raised the
averments before commencement of trial. The plaintiff was aware of
acknowledgement by Omprakash as the original bill signed by Omprakash
was in his custody from the very inception of the litigation.
7. Hon'ble Supreme Court in the case of Dinesh Goyal (supra)
considered the law with regard to amendment of pleadings as under-
11. At this juncture, before proceeding to the merits of the case, let us consider
the law relating to the amendments of pleadings.
11.1 The settled rule is that the Courts should adopt a liberal approach in
granting leave to amend pleadings, however, the same cannot be in
contravention of the statutory boundaries placed on such power. In Notth
Eastern Railway Administration Gorakhpur Vs. Bhagwan Das [ [(2008) 8 SCC
511[ it was held as under:
"16. Insofar as the principles which govern the question of granting or
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disallowing amendments under Order VI Rule 17 CPC (as it stood at the
relevant time) are concerned, these are also well settled. Order VI Rule
17 CPC postulates amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil
[AIR 1957 SC 363] which still holds the field, it was held that all
amendments ought to be allowed which satisfy the two conditions : (a)
of not working injustice to the other side, and (b) of being necessary for
the purpose of determining the real questions in controversy between the
parties. Amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had been
originally correct, but the amendment would cause him an injury which
could not be compensated in costs. [Also see Gajanan Jaikishan Joshi
Vs. Prabhakar Mohanlal Kalwar [ (1990) 1 SCC 166.]"
11.2 Over the years, through numerous judicial precedents certain
factors have been outlined for the application of Order VI Rule 17.
Recently, this Court in Life Insurance Corporation of India Vs. Sanjeev
Builders Pvt Ltd and Anr. [ 2022 SCC Online SC 1128] after considering
numerous precedents in regard to the amendment of pleadings, culled out
certain principles:-
(i) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not cause
injustice or prejudice to the other side. This is mandatory, as is apparent
from the use of the word "shall", in the latter part of Order VI Rule 17 of
the CPC.
(ii) In the following scenario such applications should be ordinarily
allowed if the amendment is for effective and proper adjudication of the
controversy between the parties to avoid multiplicity of proceedings,
provided it does not result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same should
be disallowed if-
(a) By the amendment, the parties seeking amendment does not
seek to withdraw any clear admission made by the party which
confers a right on the other side.
(b) The amendment does not raise a time-barred claim, resulting in
the divesting of the other side of a valuable accrued right (in
certain situations)
(c) The amendment completely changes the nature of the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid
defence.
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(iv) Some general principles to be kept in mind are-
(I) The court should avoid a hyper-technical approach; ordinarily
be liberal, especially when the opposite party can be compensated
by costs.
(II) Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint or introduce
an additional or a new approach.
(III) The amendment should not change the cause of action, so as
to set up an entirely new case, foreign to the case set up in the
plaint. (emphasis added)
8. Further, in case of Vidhyabai and others Vs. Premlata reported in
(2009) 2 SCC 409, the Supreme Court while referring the proviso to Order
VI Rule 17 of the C.P.C, laid down that it is primary duty of the Court to
decide as to whether the amendment is necessary to decide the real dispute
between the parties, only if such condition is fulfilled, amendment is to be
allowed. However, the proviso appended to Order VI Rule 17 of the C.P.C
restricts the power of Court. It puts an embargo on exercise of its
jurisdiction. The Court's jurisdiction in a case of this nature is limited. Thus,
unless the jurisdictional fact as envisages therein is found to be exiting, the
Court will have no jurisdiction at all to allow the amendment of the plaint.
9. The plaintiff cannot be permitted to supplement the facts by
amending the plaint, which were revealed in his cross-examination. Such an
attempt is malafide. It will introduce a new case, causing prejudice to the
defendant. Mere perusal of Interlocutory Application filed under Order VI
Rule 17 of the C.P.C (Annexure-P/8) would reveal that the plaintiff did not
assign any reason or explanation for failure to incorporate such amendment
before commencement of the trial. Thus, jurisdictional fact of due diligence
and the explanation is missing in the application. Consequently, the proposed
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amendment could not have been allowed.
10. Learned trial Court committed no error in rejecting the
application for amendment of plaint, which was filed after undue delay, that
too after examination of the plaintiff. Therefore, the present Misc. Petition,
sans merit, is dismissed.
CC as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
amol
